[Cite as McNamara v. Ohio Dept. of Transp. , 2010-Ohio-6646.] 

# Court of Claims of Ohio

The Ohio Judicial Center 65 South Front Street, Third Floor Columbus, OH 43215 614.387.9800 or 1.800.824.8263 www.cco.state.oh.us

GREGORY A. MCNAMARA

Plaintiff

v.

THE OHIO DEPARTMENT OF TRANSPORTATION

Defendant

Case No. 2010-06478-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION

{¶ 1} Plaintiff, Gregory A. McNamara, filed this action against defendant, Department of Transportation (ODOT), contending that his 2008 Volkswagen Jetta was damaged as a proximate cause of negligence on the part of ODOT in maintaining a hazardous condition on Interstate 670 in Franklin County. Specifically, plaintiff related that the rim on his car was damaged when the vehicle “hit a pothole near the Grandview Avenue exit” on Interstate 670 West. In his complaint, plaintiff recalled that the damage incident occurred on February 25, 2010 at approximately 6:30 p.m. Plaintiff requested damage recovery in the amount of $314.90, the total cost of a replacement part. The $25.00 filing fee was paid and plaintiff seeks re imbursement of that cost along with his damage claim. {¶ 2} Defendant denied liability based on the contention that no ODOT personnel had any knowledge of the particular damage-causing pothole prior to plaintiff’s February 25, 2010 described occurrence. Defendant located the particular pothole “between mileposts 1.20 and 0.95 on I-670 in Franklin County.” Defendant explained that ODOT records show no reports of a pothole at the location indicatedwere recorded prior to plaintiff’s damage event. Defendant related that ODOT received four complaints of potholes on Interstate 670 (two on February 18, 2010, February 22, 2010, and February 23, 2010) “but none of them were in the same location as plaintiff’s.” Defendant noted that the particular section of roadway, “has an average daily traffic count between 68,240 to 86,350 vehicles,” yet no prior complaints were received regarding a pothole between milepost 1.20 to 0.95 on Interstate 670. Defendant suggested that, “it is more likely than not that the pothole existed in that location for only a relatively short amount of time before plaintiff’s incident.” Defendant asserted that plaintiff failed to offer any evidence to prove his property damage was attributable to ODOT personnel. Defendant contended that plaintiff failed to prove his property damage was proximately caused by negligent maintenance on the part of ODOT. Defendant explained that the ODOT “Franklin County Manager conducts roadway inspections on all state roadways within the county on a routine basis, at least one to two times a month.” Apparently no potholes were discovered between milepost 1.20 and 0.95 on Interstate 670 the last time that section of roadway was inspected before February 25, 2010. Defendant’s maintenance records show “that no (0) pothole patching operations were conducted in the general vicinity of plaintiff’s incident” during the six-month period prior to February 25, 2010. The maintenance records (copy submitted) indicates that ODOT crews patched potholes between mileposts 7.80 to 4.00 on January 20, 2010. Defendant contended that plaintiff failed to produce evidence to establish the length of time the particular pothole existed prior to 6:30 p.m. on February 25, 2010. Defendant stated that, “if ODOT personnel had detected any defects they would have been promptly scheduled for repair.” {¶ 3} To prevail on a claim of negligence, plaintiff must prove, by a preponderance of the evidence, that defendant owed him a duty, that it breached that duty, and that the breach proximately caused his injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. However, “[i]t is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, he fails to sustain such burden.” Paragraph three of the syllabus in Steven v.Indus. Comm. (1945), 145 Ohio St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and

followed. {¶ 4} Defendant has the duty to maintain its highways in a reasonably safe condition for the motoring public. Knickel v. Ohio Department of Transportation (1976), 49 Ohio App. 2d 335, 3 O.O. 3d 413, 361 N.E. 2d 486. However, defendant is not an insurer of the safety of its highways. See Kniskern v. Townsh ip of Somerford (1996), 112 Ohio App. 3d 189, 678 N.E. 2d 273; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723, 588 N.E. 2d 864. {¶ 5} In order to prove a breach of the duty to maintain the highways, plaintiff must prove, by a preponderance of the evidence, that defendant had actual or constructive notice of the precise condition or defect alleged to have caused the

accident. McClellan v. ODOT (1986), 34 Ohio App. 3d 247, 517 N.E. 2d 1388. Defendant is only liable for roadway conditions of which it has notice, but fails to reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR 64, 507 N.E. 2d 1179. There is no evidence that defendant had actual notice of the pothole on Interstate 670 prior to February 25, 2010. {¶ 6} Therefore, to find liability, plaintiff must prove that ODOT had constructive notice of the defect. The trier of fact is precluded from making an inference of defendant’s constructive notice, unless evidenc e is presented in respect to the time that the defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. {¶ 7} In order for there to be constructive notice, plaintiff must show that sufficient time has elapsed after the dangerous condition appears, so that under the circumstances defendant should have acquired knowledge of its existence. Guiher v. Dept. of Transportation (1978), 78-0126-AD . Size of the defect is insufficient to show

notice or duration of existence. O’Neil v. Department of Transportation (1988), 61 Ohio Misc. 2d 287, 587 N.E. 2d 891. “A finding of constructive notice is a determination the court must make on the facts of each case not simply by applying a pre-set time standard for the discovery of certain road hazards.” Bussard , at 4. “Obviously, the requisite length of time sufficient to constitute constructive notice varies with each specific situation.” Danko v. Ohio Dept. of Transp. (Feb. 4, 1993), Franklin App. 92AP1183. No evidence has shown that ODOT had constructive notice of the pothole.{¶ 8} Generally, in order to recover in a suit involving damage proximately caused by roadway conditions including potholes, plaintiff must prove that either: 1) defendant had actual or constructive notice of the pothole and failed to respond in a reasonable time or responded in a negligent manner, or 2) that defendant, in a general sense, maintains its highways negligently. Denis v. Department of Transportation (1976), 75-0287-AD. The fact that defendant’s “Maintenance History” reflects no pothole repairs were made in the vicinity of plaintiff’s incident during the preceding six months does not prove negligent maintenance of the roadway on the part of ODOT. Plaintiff has not produced any evidence to infer that defendant, in a general sense, maintains its highways negligently or that defendant’s acts caused the defective

condition. Herlihy v. Ohio Department of Transportation (1999), 99-07011-AD. Therefore, defendant is not liable for any damage that plaintiff may have suffered from the pothole. {¶ 9} In the instant claim, plaintiff has failed to introduce evidence sufficient to prove that defendant maintain a known hazardous roadway condition. Plaintiff failed to prove that his property damage was connected to any conduct under the control of defendant, that defendant was negligent in maintaining the roadway area, or that there was any actionabl e neglig ence on the part of defendant. Taylor v. Transportation Dept. (1998), 97-10898-AD; Weininger v. Department of Transportation (1999), 99-10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD. Consequently, plaintiff’s claim is denied.



# Court of Claims of Ohio

The Ohio Judicial Center 65 South Front Street, Third Floor Columbus, OH 43215 614.387.9800 or 1.800.824.8263 www.cco.state.oh.usGREGORY A. MCNAMARA

Plaintiff

v.

THE OHIO DEPARTMENT OF TRANSPORTATION

Defendant

Case No. 2010-06478-AD

Clerk Miles C. Durfey

ENTRY OF ADMINISTRATIVE DETERMINATION

Having considered all the evidence in the claim file and, for the reasons set forth in the memorandum decision filed concurrently herewith, judgment is rendered in favor of defendant. Court costs are assessed against plaintiff.

________________________________ MILES C. DURFEY Clerk

Entry cc:

Gregory A. McNamara Jolene M. Molitoris, Director 3386 Timber Oak Drive Department of Transportation Columbus, Ohio 43204 1980 West Broad Street Columbus, Ohio 43223 RDK/laa 9/15 Filed 10/15/10 Sent to S.C. reporter 2/2/11